from the open-justice dept

To have a functioning judiciary in an open democracy, part of the point is to make sure that court proceedings are open to the public. Yes, there may be certain instances where certain aspects must be kept secret, but the default should be open and public. Unfortunately, in both the US and UK this week, it appears that when it comes to the bogeyman word "terrorism," courts are willing to go dark. The more serious situation is over in the UK, where it has just come out that a secret terrorism trial is being held -- the first one in centuries. Even the names of the two defendants are not known (they're listed as merely AB and CD). Journalists had even been barred from mentioning the existence of the trial, until a gag order was just overturned. Note that the Guardian's page linked above had to turn off comments for legal reasons. Journalist Tim Cook has also spoken out eloquently about why this cannot stand.

I cannot say how broken-hearted I am about the prospect of a major criminal trial involving two men charged with serious terrorism offences being held entirely in secret for the first time in modern British legal history. I have spent my entire journalistic life campaigning against courtroom secrecy and this represents a nadir and indication of abject failure.

Meanwhile, back here in the good, old United States, where we do have a First Amendment, at least we know that Adel Daoud is on trial. But the 7th Circuit Court of appeals kicked everyone out of the courtroom to hold a "secret hearing" with just the DOJ. As we wrote a few months ago, Daoud's lawyers are asking to actually see the FISA court orders that were used to gather evidence against their client -- and the DOJ is flipping out about that. While some of the hearings were held openly, at one point, Judge Richard Posner abruptly kicked everyone but the DOJ out, including Daoud's lawyers.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance -- including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Some reporters tried to ask what was going on, but Posner simply told them "No!" and kicked them out. Daoud's lawyer was similarly perplexed:

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

As the article notes, this is highly unusual. While in national security cases, certain information may be filed under seal, or certain portions may be held "in camera" without reporters or the public, it's not at all common to have just one side present. And while you may say that it makes sense in this case, where the three judge panel has to determine whether or not it's appropriate to share the FISC orders with Daoud's lawyers, it's still somewhat troubling to see the ease with which secret court proceedings may occur.

This really shouldn't need to be said

But 'Justice', hidden from the people and everyone but those few 'lucky' enough to have 'clearance' to view it and be involved in it's execution, Is. Not. Justice.

It is in fact the direct opposite of justice, and anyone pushing for it, pushing for secret laws, secret interpretations, secret courts and secret rulings is showing nothing less than a complete and utter, overwhelming contempt for the very idea of justice, and deserves an equal amount of scorn and derision, both personally and applied to what they are trying to implement.

Re: Re: Start a list

What will they do when we are all on the list? Start a super special top ultra secret watch list for the really scary people? Maybe that is the secret to ending all this garbage. When everyone is a suspect, none of us are.

Re:

I only see stars...

Wow I am truly impressed when the UK Government has just reopened the Star Chamber after it was closed in 1641. Secret trails with secret evidence and secret witnesses are back in fashion.

I have books here detailing how many time since 1641 various groups tried getting the Star Chamber reopened but past Governments have always denied this recognizing the abuse of the justice system. So all of 373 years later the current UK Government proves their place in a very troubling history.

Re: Everything old is new again

You know your history then. Some extra details about the Star Chamber...

"In 1641, the Long Parliament, led by John Pym and inflamed by the severe treatment of John Lilburne, as well as that of other religious dissenters such as William Prynne, Alexander Leighton, John Bastwick and Henry Burton, abolished the Star Chamber with an Act of Parliament: the Habeas Corpus Act 1640."

Over in the USA...

"The historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in the Fifth Amendment to the United States Constitution.[14] The meaning of "compelled testimony" under the Fifth Amendment – i.e., the conditions under which a defendant is allowed to "plead the Fifth" to avoid self-incrimination – is thus often interpreted via reference to the inquisitorial methods of the Star Chamber.[15]

As the U.S. Supreme Court described it, "the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed." Faretta v. California, 422 U.S. 806, 821–22 (1975)."

National Security

Once again it is the concept of "National Security" that trumps due process. However it should be clear that terrorism is NOT a matter of National Security.

Defending the UK against the Kaiser, Hitler and Stalin WERE matters of National Security because those adversaries had the power to actually overturn the UK as a state. Terrorists do NOT have that power - and therefore terrorism is NOT a matter of national security - it is merely a matter of vilent criminality. To claim otherwise is in fact to glorify terrorism - which Tony Blair decided should be against the law.So this secret trial is itsellf in breach of anti-terrorism laws!

How can anyone respect the authority of such a court?

A court that refuses to put on even the appearance of proper behavior does not deserve the name. Its minions may compel compliance via contempt sanctions, but such a court invites contempt upon itself.

Re: Re: Re: Start a list

This, precisely.

Nothing that is happening now is new. This is both a good and bad sign: it's good because it means that we know from history that this is something that we can fix (and we know how to fix it). It's bad because we know from history that any fix will be temporary. We can push the pendulum in the right direction, but it will swing back and require another push. Such is as it has always been.

That's a big part of the meaning of "the price of freedom is eternal vigilance."

Re: Re:

You don't even have to be that wealthy to buy your own politician. As a wise man once said (I forget who): the real problem in the US isn't that politicians can be bought, it's that their selling price is so very low.

And now for the final nail

The only thing left is the imposition of a Lettre de Cache. That's where Louis XVI signed the letter deeming you guilty and tossing you in the Bastille. Seems like we're getting pretty damn close to that now.

Chris Grayling is a massive cock, he is making a complete mess of the Ministry of Justice so this is just another thing. He is slashing legal aid, privatising probation, riots are happening in private prisons eg HMP Oakwood

Secrets courts are being used and abused to conceal State and MI5 serious crimes and wrongdoing. The BIG Lie was that they would used 'only' when there was a serious threat to 'national security'. We now know that this is not the case. MI5 (security service) are doing everything possible in the Martin McGartland -v- MI5 (British Government) case to have that case heard in secret. Why? Not for reasons of 'national security' but, it is more to do with their own embarrassment and to conceal their shortcomings, bad treatment and shortcomings towards a former undercover agent. Secret courts do not belong in the UK. The UK is not north Korea.

So governments are now just about to start imprisoning and executing people for violating secret laws. At least they have a secret trial with a secret judgment and secret attorneys and secret judges. And its all secret.

So LEOs only have to say "Because!" if they need to justify something.

Judge Posner is an extremely interesting guy and reader's should n't think that he's going to side with the DOJ or the government automatically. I follow the law some and this guy for some time and he's *quite* willing to stand up to pressure brought by whoever, including the government. HE has to clear the courtroom because the information is classified. He has no choice. That includes defense's counsel. It's complicated:

This guy should count himself as fortunate to have gotten Posner as a judge. Posner is a completely independent personality, and while he is above-SCOTUS material, he''ll never get there, owing to just that independent streak and utter frankness about controversial topics.

Re:

HE has to clear the courtroom because the information is classified. He has no choice.

I agree, Posner is not at fault, it's the law. IMO defendant's counsel should get some kind of temporary security clearance to see whatever is necessary to mount a vigorous defense. It's a travesty to have the prosecution and judge conferring in private about what evidence they'll turn over to the defense.

Re: Re: Re: Start a list

No. What happens next is called "selective enforcement". Since everyone is guilty of something, and everyone is being watched, and it is impossible to enforce all the laws all the time, only the individuals who piss off the wrong person get investigated. Cut off anyone in traffic lately? Are you sure that woman you met at the club doesn't have a husband at the NSA?

Re:

HE has to clear the courtroom because the information is classified. He has no choice. That includes defense's counsel.

In which case the information/evidence should be inadmissible in court. If the defense doesn't know what's been presented, then they can't defend against, or object to, it, making the trial itself nothing more than a show, a farce before the guilty verdict is handed out.

Re: Re: Re:

Ah, good point, my idea only really works when the government it trying to use the information/evidence against someone, rather than cases where the information/evidence is being used against the government.

An assurance of "secrecy forever" lies at the heart of the relationship between the British Security Service and its agents, the High Court has heard.

The assertion was made as the Home Secretary applied for a declaration that her lawyers should be allowed to give evidence in secret to defend a damages claim being brought by IRA mole Martin McGartland.

Mr McGartland, together with his partner and carer Joanne Asher, are suing MI5 for breach of contract and negligence in his aftercare following a shooting by the IRA which left him unable to work.

A former agent of the Royal Ulster Constabulary Special Branch, Mr McGartland claims the security services failed to provide care for post-traumatic stress disorder and access to disability benefits.

The west Belfast man's best-selling book about his experiences, 50 Dead Men Walking, has been made into a film.

He blames "years of neglect" by MI5 for leaving him traumatised and unable to work because of his secret life.

According to media reports, his high-profile case is the first of its kind involving court action between an agent and his former employers in the domestic security services.

Home Secretary Theresa May is asking Mr Justice Mitting at London's High Court to allow closed material proceedings (CMPs) to be used when his case comes on for hearing to protect national security.

If the judge allows the application, Mr McGartland, aged 42, and his lawyers will not be able to hear parts of the case or to see "sensitive material".

Special advocates will be appointed to protect his interests.

Powers to hold secret hearings were introduced in July 2013 under section 61 of the Justice and Security Act 2013 so that trials can take place in civil courts without damaging national security.

Mr McGartland's lawyers have described CMPs as "a serious aberration from the tradition of open justice".

They contend Mr McGartland's claim for damages for personal injury does not pose a risk to national security and will not expose any aspect of his undercover work as an informant against the IRA.

They are also challenging the Home Secretary's decision "neither to confirm nor deny" (NCND) that Mr McGartland is a former agent.

Mrs May's stance has meant there has been no response to Mr McGartland's specific allegations that the Security Service withdrew funding for medical treatment, was negligent in the changing of "handlers" and broke promises with regard to financial payments, the installation of a phone line and access to state benefits.

Mr McGartland's legal team are arguing her stance is absurd and unlawful as public statements naming Mr McGartland as an agent have already been made by official bodies including Crown authorities, the police, MPs and the Bloody Sunday Inquiry.

James Eadie QC, for the Home Secretary, said in a written argument before the court: "An assurance of 'secrecy forever' lies at the heart of the relationship between the Security Service and its agents.

"The strict maintenance of the NCND principle is one of the most important means by which the Security Service makes good that assurance."

Mr Justice Mitting proposed a compromise in which the Home Secretary would agree to it being taken as proved - for the purposes of the court hearing only - that Mr McGartland was an agent, without her having to abandon her NCND policy.

The judge said this would enable the courts to deal with the central allegations of negligence and breach of duty of care, which was "what this case is really all about".

The court will hear tomorrow whether the judge's proposal has been accepted by Mrs May, and whether it is acceptable to all parties.

Mr McGartland's solicitor, Nogah Ofer, said before today's hearing that attempting to rely on secret evidence in a civil claim for damages "represents a slippery slope towards ever increasing secrecy undermining fair and equal access to the courts".

She said: "Hiding behind 'Neither Confirm Nor Deny' is absurd when there has been official public confirmation for over a decade of Mr McGartland's role including acknowledgement that he has given valuable service to the country."

McGartland's claim is being brought against the background of the IRA uncovering, in 1991, the fact that he was an informant and he escaped from a kidnap by throwing himself through a third-floor window.

He had a second escape in 1999 when an IRA hit team tracked him down to his "safe" home in Whitley Bay, North Tyneside, where he was ambushed and shot seven times, leaving him with debilitating post-traumatic stress disorder.

During a confrontation with an IRA gunman, McGartland put his hands over the gun barrel and sustained injuries to prevent his attacker from firing into his upper body or head.

Secret Court Hearings On 19 and 20 June 2014 at the High Court the Home Secretary will apply for secret hearings in a civil claim brought by former Northern Ireland agent Martin McGartland. He is suing over failure to provide him with aftercare following a shooting by the IRA whichhas left him unable to work.

The Home Secretary is seeking to rely on new legalpowers introduced in July 2013 in the Justice and Security Act 2013 allowing Closed Material Proceedings (CMPs) in civil cases. When these were debated in Parliament the former Secretary of State for Justice Ken Clarke argued that they were necessary to protect national security in claims brought by terror suspects. However Martin McGartland’s claim does not involve any aspect of his work as informant but relates to failures to pay for psychiatric care and for disability benefits.CMPs are a serious aberration from the tradition of open justice as the claimant and his lawyers are excluded from hearings and not permitted to see secret evidence. Martin McGartland does not believe that national security is at risk but that secret hearings are being sought to shield every aspect of the work of the security services from scrutiny.

The Government’s response to the claim is to ‘Neither Confirm Nor Deny’ (NCND) that Martin McGartland is a former agent despite the fact that public statements have been made by official bodies including the Crown authorities, the police, Members of Parliament and the Bloody Sunday Inquiry naming him as such. His lawyers will argue that reliance on NCND in these circumstances is unlawful.

Martin McGartland’s solicitor, Nogah Ofer of BhattMurphy, said: “This represents a slippery slope towards ever increasing secrecy undermining fair and equal access to the courts. Hiding behind ‘Neither Confirm Nor Deny’ is absurd when there has been official public confirmation for over a decade of Mr McGartland’s role including acknowledgment that he has given valuable service tothe country”

In 1991 the IRA uncovered the fact that Martin McGartland was acting as informant and he escaped from a kidnap by throwing himself through a third floor window. He recovered from his injuries and was resettled under an assumed identity in the north of England. In 1999 he was ambushed and shot 7 times leaving him with debilitating post-traumatic stress disorder. He has published a best-selling book about his experiences,

50 Dead Men Walking, which has been made into film.Mr McGartland is represented by Nogah Ofer of BhattMurphy, Phillippa Kaufmann QCof Matrix Chambers and Henrietta Hill of Doughty Street.